SoftSlate Commerce Enterprise Edition End User License Agreement
LICENSE AGREEMENT.
This License Agreement is a legal agreement between you (either an individual or a single entity) ("LICENSEE") and SoftSlate, LLC ("LICENSOR") for the software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). LICENSOR is willing to license the SOFTWARE PRODUCT only upon the condition that you accept all of the terms contained in this agreement.
By installing, copying, or otherwise using the SOFTWARE PRODUCT, LICENSEE agrees to be bound by the terms of this LICENSE AGREEMENT. If LICENSEE does not agree to all the terms of this LICENSE AGREEMENT, LICENSEE must not install or use the SOFTWARE PRODUCT.
Copyright (c) 2003-2012 SoftSlate, LLC
The SOFTWARE PRODUCT is protected by copyright law and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold. Except as expressly provided herein, SoftSlate, LLC and its suppliers do not grant any express or implied right to you under any patents, copyrights, trademarks, or trade secret information with respect to the SOFTWARE PRODUCT. Except as specifically permitted herein, no portion of the SOFTWARE PRODUCT may be reproduced in any form or by any means without the prior written permission of SoftSlate, LLC.
This SOFTWARE PRODUCT includes software developed by others, and the use of such contributions by LICENSEE is subject to the terms of the developers' license agreement, copies of which may be found in the accompanying files. This third-party software and their licenses are identified as follows:
Java Activation Framework (activation.jar). See the accompanying activation.license.txt file.
Ant (ant.jar, optional.jar). See the accompanying apache.license.txt file.
ANTLR (antlr.jar). See the accompanying antlr.license.txt file.
ASM (asm.jar, asm-attrs.jar). See the accompanying asm.license.txt file.
Axis (axis.jar, saaj.jar, jaxrpc.jar, and wsdl4j.jar). See the accompanying apache.license.txt file.
Bouncy Castle (bcprov-jdk14-128.jar and bcmail-jdk14-128.jar). See the accompanying bouncycastle.license.txt file.
Cglib (cglib.jar). See the accompanying apache.license.txt file.
DHTML Color Picker v1.0.3, Programming by Ulyses, ColorJack.com (/administrator/colorpicker.html). See http://creativecommons.org/licenses/by/2.5/
Apache Commons libraries (commons-*.jar). See the accompanying apache.license.txt file.
Dom4j (dom4j.jar). See the accompanying dom4j.license.txt file.
Ehcache (ehcache.jar). See the accompanying apache.license.txt file.
First Data Global Gateway (JLinkPointTxn.jar). See https://www.firstdata.com/en_us/privacy/first-data-global-gateway-software-agreement.
Google Checkout Java Code (JavaCheckout*.jar). See the accompanying apache.license.txt file.
Hamcrest (com.springsource.org.hamcrest.core.jar). See the accompanying hamcrest.license.txt file.
Hibernate (hibernate.jar). See the accompanying hibernate.license.txt file.
imgscalr (imgscalr-lib.jar). http://www.thebuzzmedia.com/software/imgscalr-java-image-scaling-library/ See the accompanying ImageSclr.license.txt file.
Jakarta-Oro (jakarta-oro.jar). See the accompanying apache.license.txt file.
JDBC Interface Classes (jdbc-stdext.jar). See the accompanying jdbc-stdext.licence.txt file.
Jasper (el-api.jar, jasper-el.jar, jasper-jdt.jar, jasper.jar). See the accompanying apache.license.txt file.
Java Standard Tag Library (jstl.jar). See the accompanying apache.license.txt file.
Java Transaction API (jta.jar). See the accompanying jta.licence.txt file.
JavaMail (mail.jar). See the accompanying mail.license.txt file.
Jcatpcha (jcaptcha-all.jar). See the accompanying jcaptcha.license.txt file.
JUnit (junit.jar). See the accompanying cpl1.0.license.txt file.
Log4J (log4j.jar). See the accompanying apache.license.txt file.
Lucene (lucene-core.jar). See the accompanying apache.license.txt file.
Mockito (mockito-core.jar). See the accompanying mit.license.txt file.
MySQL Connector (mysql-connector-java-bin.jar). See the accompanying mysql.license.txt file.
Objenesis (com.springsource.org.objenesis.jar). See the accompanying objenesis.license.txt file.
Opencsv (opencsv.jar). See the accompanying apache.license.txt file.
Oracle JDBC driver (ojdbc14.jar). See the accompanying oracle.license.txt file.
PayPal API (paypal_base.jar and paypal_stubs.jar). See the accompanying paypal.license.txt file.
PayPal Payflow Pro and PayFlow Link Java Library (payflow.jar).
PostgreSQL JDBC driver (postgresql.jar). See the accompanying postgresql.license.txt file.
Struts (struts.jar). See the accompanying apache.license.txt file.
Struts-El (struts-el.jar). See the accompanying apache.license.txt file.
Struts Menu (struts-menu.jar).
TagLib Standard (standard.jar). See the accompanying apache.license.txt file.
Tomcat (tomcat-juli.jar, servlet-api.jar, jsp-api.jar). See the accompanying apache.license.txt file.
Winstone (winstone.jar). See http://www.opensource.org/licenses/CDDL-1.0.
Xerces (resolver.jar, serializer.jar, xercesImpl.jar, xercesSamples.jsr, and xml-apis.jar). See the accompanying apache.license.txt file.
Yahoo! UI Library. See http://developer.yahoo.com/yui/license.html
To the extent that distribution of any of the foregoing products is subject to the provisions of the GNU GENERAL PUBLIC LICENSE, Version 2, June 1991 ("GPL"), this Agreement shall constitute the LICENSOR's written offer, valid for three years from LICENSEE's acceptance, to give any third party, for a charge no more than LICENSOR's cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 of the GPL, on a medium customarily used for software interchange.
To the extent that distribution of any of the foregoing products is subject to the provisions of the GNU LESSER GENERAL PUBLIC LICENSE, Version 2.1, February 1999 ("LGPL") this Agreement shall constitute the LICENSOR's written offer, valid for three years from LICENSEE's acceptance, to give LICENSEE the materials specified in Subsection 6a of the LGPL, for a charge no more than LICENSOR's cost of physically performing such distribution.
This SOFTWARE PRODUCT includes software developed by Oracle USA, Inc. By agreeing to this License Agreement you also agree to the sections of the accompanying oracle.license.txt file entitled "License Rights," "Ownership and Restrictions," "Export," "Disclaimer of Warranties and Exclusive Remedies," "No Technical Support," "End of Agreement," "Relationship Between the Parties," and "Open Source." Moreover, you agree that this License Agreement grants to you no right to distribute Oracle software, and that Oracle is a third-party beneficiary of this License Agreement, which means that Oracle shall have the right to proceed directly against you to enforce the provisions of this License Agreement which are intended for its protection.
This SOFTWARE PRODUCT includes software developed by PayPal, Inc. (http://www.paypal.com/).
Copyright (c) 2006 PayPal, Inc.
LICENSEE's use of PayPal is subject to the following terms and conditions:
i. Notwithstanding anything to the contrary herein, this License Agreement shall be construed so as to be consistent in all respects with the terms and conditions of the PayPal software license;
ii. PayPal disclaims all warranties and conditions, express or implied, with respect to the PayPal software;
iii. PayPal disclaims all liability for damages of any kind from any cause whatsoever arising from LICENSEE's use of the PayPal software;
iv. To the extent that the provisions of this License Agreement differ from those of the PayPal software license, they are the sole responsibility of LICENSOR; and
v. PayPal software is available as part of the SOFTWARE PRODUCT, and may also be obtained directly from PayPal at https://www.paypal.com/IntegrationCenter/ic_pdnHome.html
GRANT OF LICENSE.
LICENSOR grants LICENSEE a limited, non-exclusive and non-transferable license to use the SOFTWARE PRODUCT subject to the following terms and conditions.
1. Software Product.
a. LICENSEE may install and use:
i. One copy of the SOFTWARE PRODUCT, or any prior version, on a single domain name accessible publicly through the World Wide Web and used for LICENSEE's public activities ("PRODUCTION SERVER");
ii. One copy of the SOFTWARE PRODUCT, or any prior version, on a single domain name accessible publicly through the World Wide Web and used exclusively for testing or development purposes, whose public accessibility LICENSEE may not market or advertise ("STAGING SERVER"); and
iii. An unlimited number of copies of SOFTWARE PRODUCT, or any prior version, on domain names not accessible publicly through the World Wide Web and used exclusively for internal development and testing ("DEVELOPMENT SERVERS").
b. Electronic Documents. Solely with respect to electronic documents included with the SOFTWARE, LICENSEE may make an unlimited number of copies (either in hardcopy or electronic form), provided that such copies shall be used only for internal purposes and are not republished or distributed to any third party.
2. Source Code. The SOFTWARE PRODUCT includes the preferred form of the SOFTWARE PRODUCT for making modifications to it and all available documentation describing how to modify the SOFTWARE PRODUCT ("SOURCE CODE"). The following additional conditions apply.
a. Delivery. LICENSOR agrees to provide LICENSEE with a copy of the SOURCE CODE.
b. Derivative Works. LICENSEE may modify its copy of the SOURCE CODE or any portion of it, or its documentation, thus forming a work based on the SOFTWARE PRODUCT ("DERIVATIVE WORK"), subject to the conditions of paragraphs (b) and (c) of this Section:
i. LICENSEE agrees that the SOURCE CODE shall be used only for the purposes of modifying the SOFTWARE PRODUCT for LICENSEE's own use and shall not be used for any other purpose.
ii. Title to and ownership of any portion of the SOFTWARE PRODUCT which is proprietary to a third party and which is incorporated into a DERIVATIVE WORK shall at all times remain with such third party, and LICENSEE shall have no title or ownership interest therein.
iii. Title to and ownership of any portion of the SOFTWARE PRODUCT incorporated into a DERIVATIVE WORK shall at all times remain with LICENSOR, and LICENSEE shall have no title or ownership interest therein.
iv. Title to and ownership of any portion of a DERIVATIVE WORK created by LICENSEE and not owned by LICENSOR pursuant to the above clause shall be held by LICENSEE.
v. LICENSOR shall not be required to maintain or otherwise repair any DERIVATIVE WORKS. LICENSOR may, in its sole discretion, provide assistance in repairing errors or defects in DERIVATIVE WORKS subject to the terms of a separate agreement.
vi. Nothing contained in this Agreement shall be construed to limit LICENSOR's rights to modify the SOFTWARE PRODUCT or to develop other products which are similar to or offer the same or similar improvements as any DERIVATIVE WORKS developed by LICENSEE.
vii. LICENSEE may not redistribute, encumber, sell, rent, lease, or sublicense the SOFTWARE PRODUCT or any DERIVATIVE WORKS.
viii. LICENSEE may not otherwise transfer rights to the SOFTWARE PRODUCT or any DERIVATIVE WORKS.
ix. LICENSEE shall maintain and place in a prominent position on any copy of the SOFTWARE PRODUCT or any DERIVATIVE WORKS all such notices as are authorized and/or required hereunder, together with a copy of this Agreement. LICENSEE shall use the following notice, or such other reasonable notice as LICENSOR shall from time to time require, on each copy of the SOFTWARE PRODUCT or any DERIVATIVE WORKS. Such notice shall be loaded in the computer memory for use, display, or reproduction and shall be embedded in program source code and object code, in the video screen display, on the physical medium embodying the copy, and on any documentation and reference manuals:
Copyright (c) 2003-2012 SoftSlate, LLC
This software also contains resources which incorporate material contributed or licensed by individuals, companies, or organizations that may be protected by U.S. and foreign copyright laws. All persons making commercial use of this software are expected to adhere to the terms and conditions asserted by the copyright holder. Transmission or reproduction of protected items beyond that allowed by fair use as defined in the copyright laws requires the written permission of the copyright owners.
c. Confidentiality.
i. LICENSEE hereby acknowledges and agrees that the SOFTWARE PRODUCT, SOURCE CODE, DERIVATIVE WORKS and any related confidential or proprietary information or trade secrets ("CONFIDENTIAL INFORMATION") constitute and contain valuable proprietary products and trade secrets of LICENSOR, embodying substantial creative efforts and confidential information, ideas, and expressions. LICENSEE may not disclose or make available to third parties the CONFIDENTIAL INFORMATION without LICENSOR'S prior written approval. LICENSEE agrees to treat (and take precautions to ensure that its employees treat) the CONFIDENTIAL INFORMATION as confidential in accordance with the confidentiality requirements and conditions set forth herein.
ii. LICENSEE agrees to protect the confidentiality of CONFIDENTIAL INFORMATION in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of CONFIDENTIAL INFORMATION).
iii. LICENSEE acknowledges that the unauthorized use, transfer or disclosure of the CONFIDENTIAL INFORMATION or copies thereof will (i) substantially diminish the value to LICENSOR of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render LICENSOR's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If LICENSEE breaches any of its obligations with respect to the use or confidentiality of the CONFIDENTIAL INFORMATION, LICENSOR shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
iv. CONFIDENTIAL INFORMATION shall not be disclosed to any employee, consultant or third party unless they agree to execute and be bound by the terms of this Agreement.
v. LICENSEE's obligations for confidentiality under this clause will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
d. Upgrades
i. Minor Upgrades. LICENSOR will provide LICENSEE with error corrections, bug fixes, patches or other updates to the SOFTWARE PRODUCT licensed hereunder ("MINOR UPGRADES") in object code form in accordance with LICENSOR's release schedule. In addition, LICENSOR will provide LICENSEE with updated SOURCE CODE for each new MINOR UPGRADE.
ii. Major Upgrades. At LICENSOR's discretion, LICENSOR may deem a set of error corrections, bug fixes, patches or other updates to the SOFTWARE PRODUCT to be a major release, constituting significant enhancements and modifications ("MAJOR UPGRADE"). Distribution of MAJOR UPGRADES may be subject to separate license agreement and additional license fees, in LICENSOR's sole discretion.
iii. Other Modifications. LICENSEE may, from time to time, request that LICENSOR incorporate certain features, enhancements or modifications into the SOFTWARE PRODUCT. LICENSOR may, in its sole discretion, undertake to incorporate such changes and distribute the SOFTWARE PRODUCT so modified to all or any of LICENSOR's licensees. LICENSEE may agree to compensate LICENSOR for incorporating such changes into the SOFTWARE PRODUCT.
v. Title to Modifications. All such error corrections, bug fixes, patches, updates, enhancements or other modifications shall be the sole property of LICENSOR, including those for which LICENSOR receives compensation from LICENSEE.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
1. Separation of Components.
The SOFTWARE PRODUCT is licensed as a single product. Except to the extent allowed using the SOFTWARE PRODUCT features, its component parts may not be separated for use on more than one PRODUCTION SERVER and one STAGING SERVER.
2. Prohibited Uses.
LICENSEE may not:
a. Modify, translate, reverse engineer, decompile, disassemble, reduce the SOFTWARE PRODUCT to a humanly perceivable form, or create derivative works based upon the SOFTWARE PRODUCT, or cause another to do so, except to the extent expressly permitted by this Agreement;
b. Remove any proprietary notices, labels, copyright marks, or trademarks on the SOFTWARE PRODUCT;
c. sell, distribute, rent, lease, lease, commercially host, sublicense, redistribute, give away or lend the SOFTWARE PRODUCT.
3. Support Services.
LICENSOR may provide LICENSEE with support services related to the SOFTWARE PRODUCT ("Support Services"). Use of Support Services is governed by the LICENSOR policies and programs described in the LICENSOR Web site, user manual, documentation, and/or other LICENSOR-provided materials. LICENSOR reserves the right to use any technical information provided to LICENSOR by LICENSEE in connection with Support Services for its business purposes, including product support and development. Except as expressly provided herein, LICENSOR shall have no obligation to provide subsequent releases of the SOFTWARE PRODUCT to LICENSEE.
4. Termination.
a. Without prejudice to any other rights, LICENSOR may terminate this LICENSE AGREEMENT at any time upon failure to comply with the terms and conditions of this LICENSE AGREEMENT. In such event, LICENSOR may cease performance of all of LICENSOR's obligations hereunder without liability to LICENSEE, and LICENSEE shall cease any further use of the SOFTWARE PRODUCT or any portion thereof and immediately destroy all copies of the SOFTWARE PRODUCT and all of its component parts. LICENSOR's foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to LICENSOR at law or in equity.
b. UPON ANY TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT, DUE TO BREACH OR OTHERWISE, LICENSOR SHALL IN ALL EVENTS HAVE ALL RIGHTS, POWER AND AUTHORITY TO EXERCISE ELECTRONIC SELF-HELP AND TO EXERCISE ALL RIGHTS, REMEDIES AND RECOURSE TO WHICH IT MAY BE ENTITLED, WHICH SELF-HELP SHALL INCLUDE WITHOUT LIMITATION, ALL ELECTRONIC MEANS AVAILABLE TO LICENSOR.
5. Proprietary Rights.
All title, ownership rights, and intellectual property rights in the SOFTWARE remain with LICENSOR and/or its suppliers. LICENSEE acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with LICENSOR's or its suppliers' ownership of or rights with respect to the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the SOFTWARE PRODUCT is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives LICENSEE no rights to such content.
6. Limited Warranty.
LICENSOR warrants that (i) the SOFTWARE PRODUCT will perform substantially in accordance with the accompanying written materials for a period of thirty (30) days from the date of receipt, and (ii) any Support Services provided by LICENSOR shall be substantially as described in applicable written materials provided to LICENSEE by LICENSOR, and LICENSOR support engineers will make commercially reasonable efforts to solve any defect issues. [Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to LICENSEE. To the extent allowed by applicable law, implied warranties on the SOFTWARE PRODUCT, if any, are limited to thirty (30) days.] In addition, LICENSEE must acknowledge that security mechanisms implemented by this SOFTWARE PRODUCT have inherent technology limitations, and LICENSEE must assume all responsibility for determining that the SOFTWARE PRODUCT sufficiently meets its security requirements.
7. Customer Remedies.
LICENSOR and its suppliers' entire liability and LICENSEE's exclusive remedy shall be, at LICENSOR's option either (i) return of the price paid, if any, or (ii) repair or replacement of the SOFTWARE PRODUCT that does not meet LICENSOR's Limited Warranty. This Limited Warranty is void if failure of the SOFTWARE PRODUCT has resulted from accident, abuse, misapplication, or modifications to the SOFTWARE PRODUCT. This Limited Warranty shall constitute Licensee's sole and exclusive remedy. Any replacement of SOFTWARE PRODUCT will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by LICENSOR are available without proof of purchase from an authorized international source.
8. NO OTHER WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH LICENSEE'S QUIET ENJOYMENT OF THE LICENSED PRODUCT OR AGAINST INFRINGEMENT, AND LICENSOR HAS NO LIABILITY TO LICENSEE FOR THE INFRINGEMENT OF PROPRIETARY RIGHTS BY THE LICENSED PRODUCT OR ANY PORTION THEREOF. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT BE APPLICABLE.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PERFORMANCE OF OR FAILURE TO PROVIDE SUPPORT SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA TIME, DELIVERY DELAY OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY), PROVIDED THAT, IF LICENSEE HAS ENTERED INTO A SUPPORT SERVICES AGREEMENT WITH THE LICENSOR, LICENSOR'S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND, AS SUCH, SOME PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. IN SUCH JURISDICTIONS, LICENSOR'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
10. Encryption.
If LICENSEE wishes to use the cryptographic features of the SOFTWARE PRODUCT, then LICENSEE may need to obtain and install a signed digital certificate from a certificate authority or a certificate server. LICENSEE may be charged additional fees for certification services. LICENSEE is responsible for maintaining the security of the environment in which the SOFTWARE PRODUCT is used and the integrity of the private key file used with the SOFTWARE PRODUCT. In addition, the use of digital certificates is subject to the terms specified by the certificate provider, and there are inherent limitations in the capabilities of digital certificates. If LICENSEE is sending or receiving digital certificates, LICENSEE is responsible for familiarizing itself with and evaluating such terms and limitations.
11. Export Control.
LICENSEE agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the SOFTWARE PRODUCT or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses related to any necessary licenses and/or exemptions with respect to its own export of the SOFTWARE PRODUCT from the United States. Export and re-export controls on commercial encryption products are administered by the Bureau of Industry and Security of the U.S. Department of Commerce. Rules governing exports and re-exports of encryption items are found in the Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774. Neither the SOFTWARE PRODUCT nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country prohibited by the EAR, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject thereto; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the SOFTWARE PRODUCT, LICENSEE represents and warrants that LICENSEE is not located in, or under the control of, or a national of any such country or on any such list.
If the SOFTWARE PRODUCT is identified as being a not-for-export (for example, on the box, media or in the installation process), then, unless LICENSEE has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE PRODUCT AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE PRODUCT, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON."
12. High Risk Activities.
The SOFTWARE PRODUCT is not fault-tolerant and is not designed, manufactured, or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the SOFTWARE PRODUCT could lead directly to death, personal injury, or severe physical or environmental damage ("HIGH RISK ACTIVITIES"). Accordingly, LICENSOR and its suppliers specifically disclaim any express or implied warranty of fitness for HIGH RISK ACTIVITIES. LICENSEE agrees that LICENSOR and its suppliers will not be liable for any claims or damages arising from the use of the SOFTWARE PRODUCT in such applications.
13. Miscellaneous.
a. This Agreement may be amended only by a writing signed by both parties.
c. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.
d. This Agreement shall be governed by the laws of the State of New York, without reference to its conflict of law rules.
e. Unless otherwise agreed in writing, all disputes relating to this Agreement shall be subject to final and binding arbitration under the auspices and the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Albany, New York by one independent arbitrator who shall be a retired judge or attorney with experience in software licensing law, and the prevailing party shall be entitled to recover all costs of arbitration.
f. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
g. If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
h. The controlling language of this agreement is English. If LICENSEE has received a translation into another language, it has been provided for LICENSEE's convenience only.
i. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition of any subsequent breach thereof.
j. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
k. LICENSEE may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of LICENSEE's assets to another entity.
l. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
m. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
n. The relationship between LICENSOR and LICENSEE is that of independent contractors and neither LICENSEE nor its agents shall have any authority to bind LICENSOR in any way.
o. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.
p. If any LICENSOR professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between LICENSOR and LICENSEE. The parties acknowledge that such services are acquired independently of the SOFTWARE PRODUCT licensed hereunder, and that provision of such services is not essential to the functionality of such SOFTWARE PRODUCT.
q. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
r. LICENSOR may use LICENSEE's name in any customer reference list or in any press release issued by LICENSOR regarding the licensing of the SOFTWARE PRODUCT.
14. LICENSEE outside the U.S.
a. If LICENSEE is located outside the U.S., then the provisions of this Section shall apply.
i. The parties confirm that this Agreement and all related documentation is and will be in the English language.
ii. LICENSEE is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the SOFTWARE PRODUCT, and LICENSEE represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.
Copyright (c) 2003-2012 SoftSlate, Inc. All Rights Reserved.